§ 15-2119 — Procedure for construction of reservoirs

New York § 15-2119

• Jurisdiction: New York
• Law ENV: Environmental Conservation
• Title 21: River Regulation By Storage Reservoirs
• Art. 15: Water Resources

Text

§ 15-2119. Procedure for construction of reservoirs.\n 1. Preliminary plans, specifications, maps, statements and estimates\nare required as follows:\n a. If the board shall determine as a part of the official plan or\nbefore the official plan has been prepared that the public interest or\nwelfare requires that a reservoir should be constructed for the\nregulation of the flow of a river or rivers, stream or streams of the\ndistrict, it shall cause to be prepared preliminary plans and\nspecifications of such reservoir with estimates of the total cost\nthereof together with a survey of the lands upon which the same is to be\nconstructed, giving the location thereof, and of all lands to be taken,\nflowed or damaged, with a description by survey or otherwise, showing\nthe amount of lands belonging to the state and to persons or public\ncorporations and the amount of lands of the state in the forest preserve\naffected thereby.\n b. The board shall also cause a map to be made, showing all such\nlands, the number of acres in each separate tract, the names of the\nowners and occupants thereof, so far as the board can ascertain the\nsame. Such maps shall also show the high flow lines of the proposed\nreservoir.\n c. The board shall also prepare a statement of the amount of water\npower, if any, which consistent with the proper regulation of the flow\nof the river or stream may be developed at or by reason of such\nreservoir by the withdrawal of water for power purposes directly\ntherefrom with an estimate of the value thereof. The board shall also\nprepare a statement showing generally the public corporations and\nlocality of lands to be benefited by the improvement and how and whether\nthe state will be benefited thereby and the public necessity for the\nimprovement.\n d. In the event that any of the real estate required for such\nreservoir shall belong to the state, the value thereof shall be\ndetermined in the estimates, as hereinbefore provided, and in the event\nthat such land is outside the forest preserve and the state is\nchargeable with any proportion of the expenses, such value shall be\ndeducted from the amount to be paid by it, and shall be chargeable as a\npart of the expenses of the improvement.\n e. When the board shall have completed such preliminary plans, maps,\nspecifications, estimates and statements, it shall certify the same with\nits approval thereof to the department, which shall have power after\nhearing the board, to modify such maps, plans, specifications, estimates\nand statements, or any of them, and within forty days after the receipt\nthereof shall approve the same as certified to or modified by it, and\nshall certify the same as approved by it to the board. The board shall\nthereupon cause the preliminary plans, maps, specifications, estimates\nand statements so approved to be filed in the office of the county clerk\nof each county having lands within such district, and in the office of\nthe department.\n 2. Upon the completion and filing of such preliminary plans, maps,\nspecifications, estimates and statements, as aforesaid, the board shall\nforthwith give notice of such filing as provided in subdivision 1 of\nsection 15-0903, and shall hold a hearing thereon in the manner set\nforth in section 15-0903.\n 3. Upon the completion of such hearing the board shall determine\nwhether the public welfare requires that such proposed improvement\nshould be proceeded with, and what, if any, modification should be made\nin such plans, maps, specifications, estimates and statements. If the\nboard shall determine that such maps and plans, specifications,\nestimates and statements should be modified in any respect, it shall\ncertify its proposed modifications to the department, which after\nhearing, the board shall determine what, if any, modifications should be\nmade therein, and as modified by them shall approve the same and certify\nthe same with their approval to the board, which modified plans, maps,\nspecifications, statements and estimates shall be filed by it as\nhereinbefore provided for the filing of the original thereof. If the\nboard shall finally determine that the proposed reservoir shall be made,\nit shall thereupon make a final order directing the same to be made, and\nshall cause such final order or certified copies thereof to be filed and\nrecorded in the office of the county clerk of each county in which any\nlands within such district are located, and in the office of the\ndepartment, and forthwith give notice by publication of the making and\nfiling of such final order.\n 4. Any person or public corporation affected by the determination of\nthe board may review such final determination in the manner provided by\narticle seventy-eight of the civil practice law and rules. Unless\napplication shall be made for such review within sixty days after the\nfiling of the final order, as herein provided, the plans, maps,\nspecifications, statements and estimates shall be the established and\nfinal plans, maps, specifications, statements and estimates of such\nreservoir. In the event that upon such review there shall be any\nmodification by the court of the final order, maps, plans,\nspecifications, statements and estimates, the court shall direct the\nmodification thereof by order, and the board shall cause such order to\nbe filed and recorded in each place where the final order was filed and\nrecorded. No review of the final determination of the board shall be had\nunless at the time of the application for review the person or public\ncorporation seeking the review shall give an undertaking approved by the\nsupreme court or a justice thereof, as to form, amount, and sufficiency\nor sureties that in the event of failure to modify the final\ndetermination, he or it will pay to the board all such costs and\nexpenses as are incurred by it on account of the review proceedings, as\nshall be determined by the court.\n 5. The board shall have power to make such changes in the final maps,\nplans and order as the nature of the work may require, provided that the\nboard shall give notice by publication pursuant to subdivision 1 section\n15-0903, and shall give a hearing thereon as in the first instance and\nthe same proceedings shall be had as provided by subdivisions 3 and 4 of\nthis section.\n 6. In the event that in any such plans, estimates and statements, a\ncharge is made against the state for any share of the expenses of the\nproposed reservoir, not including therein such preliminary expenses as\nmay have been necessary or expenses consisting only of assessments\nagainst the state on account of benefits from the improvement, no such\nreservoir shall be made under title 21 of this article pursuant to any\nsuch final order until the Legislature shall make appropriation to pay\nthe state's share of such expenses. The sum so appropriated shall be\npaid into the general fund of the river regulating district for which it\nis appropriated.\n 7. When any such final order shall have been made, and the Legislature\nshall have made appropriation for any share of the expense payable by\nthe state, if any, the board shall proceed as herein provided to the\nacquisition of such real estate as may be necessary for the\nconstruction, maintenance and operation of such reservoir. When\nproceedings are taken under the eminent domain procedure law, the board\nshall file in the Comptroller's office a certified copy of the final\norder provided for in the eminent domain procedure law, and a certified\ncopy of the judgment therein rendered pursuant to the eminent domain\nprocedure law, together with the certificate of the Attorney General\nthat no appeal from such final order and judgment has been made, or will\nbe taken by the state, or if an appeal has been taken, a certified copy\nof the final judgment of the appellate court. Payments of the amount due\nupon such final order and judgment with interest from the date of the\njudgment until thirty days after the entry of such final order and\njudgment, and payments for real estate taken by agreement, shall be made\nout of the general fund of the district.\n 8. Construction work shall be undertaken in accordance with the\nfollowing provisions:\n a. After any such final order shall have been made and filed as\nhereinbefore provided, the board may proceed to construct the work\naccording to the plans and specifications, by publishing a notice\nstating the time when and the place where such bids or proposals will be\nreceived, once a week for three weeks in one newspaper published in the\ncity of New York and in one newspaper in each county wholly or partly\nwithin the district, if such papers there be, and in such other\nnewspapers as the board shall deem advisable.\n b. The advertisement shall be limited to a brief description of the\nwork proposed to be let with an announcement stating where the maps,\nplans and specifications are on exhibition and the terms and conditions\non which bids will be received and such other matters as may be\nnecessary to carry out the provisions of title 21 of this article. In\nsuch notice the board shall reserve the right to reject any or all bids\nand again advertise for further bids.\n c. The proposals received pursuant to such advertisements shall be\npublicly opened and read at the time and place designated. Every\nproposal must be accompanied by a deposit in the form of a certified\ncheck upon some national or state bank or trust company within the state\nin good credit and payable to the board for five per cent of the amount\nof the proposal. In case the proposer to whom such contract shall be\nawarded shall fail or refuse to enter into such contract within the time\nfixed by the board, such deposit shall be forfeited to the board and\npaid by it into and become a part of its general fund. In case the\ncontract be made such deposit shall be returned to the contractor.\n d. Before entering into any such contract a bond with sufficient\nsureties to be approved by the board shall be required, conditioned that\nthe contractor will perform all work within the time prescribed in and\nin accordance with the plans and specifications, and will pay to the\nstate, the regulating district and the board all damages, costs and\nexpenses suffered or incurred by any or all of them by reason of the\nneglect or default of such contractor or his employees or any\nsubcontractor or his employees in the performance of such contract or in\ndoing such work thereunder.\n e. Such contract may provide for partial payments to be made from time\nto time upon the certificate of the engineer in charge of the work after\ndue inspection thereof for an amount not exceeding ninety per cent of\nthe contract price for the work actually done as shown by the\ncertificate. Such certificate must state the amount of the work\nperformed and its total value, at the price fixed by such contract, but\nin all cases not less than ten per cent of the estimate thus certified\nmust be retained until the contract is completed and approved by the\nengineer in charge of the work and by the department.\n f. The board may divide the work into several parts and let separate\ncontracts therefor. If the estimated cost of any part of such work does\nnot exceed ten thousand dollars, the board may by resolution proceed to\ndo such part of such work by its own forces or otherwise. All such\ncontracts before being entered into shall be approved by the department.\n g. Subject to the authority of the department to dispose of\nmerchantable timber and salable wood on state land, no reservoir shall\nbe constructed until provision shall have been made by the board for the\nclearing from the reservoir site of all timber and all timber growth on\nlands to be flowed, such timber and timber growth to be removed by the\nboard by contract or otherwise, with the approval of the department. The\nboard shall not permit to remain upon a reservoir site above the low\nflow line of the reservoir any stump higher than twelve inches above the\nbed of the reservoir adjacent thereto.\n h. All merchantable timber and salable wood on state land to be flowed\nshall be sold by the department in such manner as it shall deem best for\nthe interests of the state, but in no event for a sum less than its fair\nmarket value, provided, however, that the department may in its\ndiscretion sell any such merchantable timber or salable wood at public\nauction after due advertisement. The proceeds of any sale or disposition\nless the expenses thereof and the reasonable cost of inspecting,\nscaling, lumbering, cutting and piling, if any, incurred by the\ndepartment, shall be paid into the general fund of the state. The\ndepartment may designate the trees or kinds of trees to be considered\nmerchantable timber or salable wood.\n i. In preparation of the reservoir site the board shall do such work\nas may be necessary to prevent stagnant pools above the low flow line\nthereof.\n